Branch v. State

• Decision Date: 20 July 1928
• Parties: BRANCH v. STATE.
• Court: Florida Supreme Court

118 So. 13

96 Fla. 307

BRANCH v. STATE.

Florida Supreme Court, Division A.

July 20, 1928

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Johnnie Branch, alias Bud Branch, was convicted of murder, and he brings error.

Affirmed.

Ellis C.J., and Brown, J., dissenting in part.

Syllabus by the Court

SYLLABUS

Defense of self-defense is not supported by evidence that deceased made geture toward back pocket. In a trial for murder, the defense of self-defense is not supported by evidence that the deceased made a gesture toward his back pocket.

Averment in affidavit supporting motion for new trial for newly discovered evidence, that defendant shot deceased in self-defense, was insufficient to support motion; it is province of jury, and not witness, to draw inference from facts offered in evidence as to whether they constitute self-defense. In a motion for a new trial on the ground of newly discovered evidence in a trial for murder, where the defense is self-defense, the averment in the affidavit supporting the motion that the defendant 'shot the deceased in self-defense' is not sufficient to support the motion. It is the province of the jury, and not the witness, to draw the inference from the facts offered in evidence whether they constitute self-defense; that is reasonable ground to believe that bodily harm was intended to be inflicted upon the defendant, and that he had reasonable ground to apprehend imminent danger of its being accomplished.

Motion for new trial in criminal case, based on newly discovered evidence, is regarded with distrust and disfavor; newly discovered evidence, to warrant new trial, must have been discovered since former trial, and defendant must have used due diligence to procure it; newly discovered evidence, to warrant new trial, must be material to issue, and not merely to impeach character of witness; newly discovered evidence to warrant new trial, must not be cumulative, and must be such that it would produce opposite result. A motion for a new trial in a criminal case, based on newly discovered evidence, is regarded with distrust and disfavor. The evidence must have been discovered since the former trial, the defendant must have used due diligence to procure it on the former trial, the evidence must be material to the issue, it must go to the merits of the cause, and not merely to impeach the character of the witness, it must not be cumulative, and it must be of such character that on another trial it would produce an opposite result.

Rule governing motions for new trial for newly discovered evidence should not be relaxed, where evidence raised no grave doubt as to guilt. The rule governing motions for a new trial on newly discovered evidence should not be relaxed, where the evidence adduced at the trial raises no grave doubt as to the defendant's guilt.

Motion for new trial is not part of record, nor affidavits offered in support of it; motions, proceedings, documents, or other matters, not part of record proper, may be considered by appellate court only when duly authenticated (Laws 1927, c. 12019). Chapter 12019, Laws of 1927, was intended to cure imperfections in making up transcripts of the records of causes tried in court. A motion for a new trial is not part of the record of a cause, nor are the affidavits offered in support of it. Any motion, proceeding, document, or other matter, not part of the record proper, may under the provisions of the statute be considered by the appellate court, although they appear only in the purported transcript of the record proper, but only when such motions, proceedings, documents, or other matter are duly authenticated as having occurred at the trial.

Witness may testify as to conduct, demeanor, or manner of another, and may used words which amount to characterization thereof. A witness may testify as to the conduct, demeanor, or manner of another, and in so doing may use words which amount ot a characterization of the same.

Error In exclusion of admissible evidence may be rendered harmless by admission at later stage of trial of substantially same evidence. Where admissible evidence is excluded in the trial of a cause, the error may be cured, so as to render it harmless, by the admission at a later stage of the trial of substantially the same evidence.

COUNSEL

Hutchins & Magruder and Jones & Jones, all of Orlando, for plaintiff in error.

Fred H. Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.

OPINION

ELLIS, C.J.

The plaintiff in error was convicted of the murder of his father. The jury recommended mercy; so the sentence was life imprisonment. He seeks a reversal of the judgment on writ of error.

An examination of the 'transcript of testimony' as reported by the court reporter discloses evidence abundantly sufficient to support the verdict.

The plaintiff in error, who was the son of the man killed, had been attacked by his father early Sunday morning on the 7th of February, 1926. The circumstances occurred in about the following manner: The accused, Johnnie Brach, who lived with his father and mother and their family, arose early and went in the yeard to the toilet. His father, the deceased, came to the door of the little house, opened it, and struck his son with a stick. The mother of the defendant called to her husband, who immediately returned to the house. The defendant left the premises, and went to a house some distance away and procured an automatic pistol from an acquaintance. Armed with that weapon, he returned to the house, went to his room, and began packing his clothes preparatory to leaving, according to his statement. Seeing his father near the front door, he went to him and asked why his father had treated him as he did. An altercation occurred between them, and the defendant shot his father several times, producing wounds in the latter's body which almost instantly produced death.

It appears that some unpleasantness had existed between the father and the son, who was about 20 years old, occasioned by the latter taking money, quite a large sum, from his father and going off to another state with it, from which he was brought back by an officer on the father's complaint.

The defense appeared to have been justifiable homicide, because of self-defense. There is nothing in the court reporter's transcript of the testimony upon which to rest the theory that the defendant killed his father while resisting an attempt of the latter to murder the former, or to commit any felony upon him, or that the homicide was committed by the defendant in the lawful defense of himself, when there existed reasonable ground for his apprehension that his father designed to commit a felony upon him, or to do him some great personal injury, and there was imminent danger of such design being accomplished.

There was a conflict between the defendant's testimony and that of other witnesses as to whether the deceased, at the time he was killed by his son, had a water glass or a pistol in his right hand. A shattered water glass was found near the body immediately after the shooting, and particles of glass were found in the right hand of the deceased. The defendant, however, said that his father held a pistol in that hand, from which he, the defendant, removed it immediately after the shooting. There was some evidence that, when the son renewed the conversation in the house with his father, the latter made a gesture toward his 'back' pocket; the inference being that such a gesture was a threatening one. The jury, however, whose province it was, resolved those differences against the defendant, at least in so far as that, even if the gesture was made by the deceased, it did not under the circumstances afford reasonable ground upon which the accused could entertain apprehension of great bodily injury to himself and imminent danger of its being accomplished. See Collins v. State, 88 Fla. 578, 102 So. 880.

A motion was made for a new trial on newly discovered evidence and other grounds, which was overruled.

The errors assigned as Nos. 9, 10, 11, 12, 13, 14, and 15 relate to the tenth ground of the motion for a new trial on newly discovered evidence. That ground of the motion relates that Rossell O'Neal and Julian Branch would testify that the deceased 'had drawn his gun or weapon upon the defendant before the defendant shot him, and that the defendant shot the deceased in his necessary self-defense.'

The latter portion of such proposed evidence would not be permissible, as it is solely the province of the jury from the facts in evidence to decide whether the drawing of a 'gun' on another under the circumstances constituted reasonable ground to believe that bodily harm was intended by such act to be inflicted upon the defendant, and that he had reasonable ground to apprehend imminent danger of its being accomplished. Again, the phrase 'had drawn his gun or weapon upon the defendant' is more or less veiled in some obscurity of meaning. What constitutes a drawing of a weapon upon another, so that the other has reasonable ground to apprehend its immediate use upon him, to justify the taking of life, is a question for the jury. The deceased may have 'drawn' a weapon, that is to say, taken it from his pocket, or procured it from some other place, and yet in the circumstances the fact would not have evinced an intention to use it upon the other. The phrase used in the affidavit contained a subtle insinuation of the motive of the deceased.

It is true that the phrase, 'He drew his pistol,' is a common one; but it is equally true that it invariably implies the motive with which it is drawn. To say that one drew his pistol on another implies that he did so with the motive of shooting that other with the...